State v. Allenbaugh

2019 Ohio 929

• Court: Ohio Court of Appeals
• Decided: March 18, 2019
• Docket: 2019-A-0017
• Status: Published

Opinion

[Cite as State v. Allenbaugh, 2019-Ohio-929.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY, OHIO

STATE OF OHIO, : MEMORANDUM OPINION

Plaintiff-Appellee, : CASE NO. 2019-A-0017 - vs - :

MARK H. ALLENBAUGH, :

Defendant-Appellant. :

Criminal Appeal from the Ashtabula Municipal Court, Case No. 2017 TRD 04031.

Judgment: Appeal dismissed.

Michael Franklin, Ashtabula City Solicitor, and Lori B. Lamer, Assistant City Solicitor, Ashtabula Municipal Court, 110 West 44th Street, Ashtabula, OH 44004 (For Plaintiff- Appellee).

Mark H. Allenbaugh, pro se, 2934 Shirley Street, Ashtabula, OH 44004 (Defendant- Appellant).

MATT LYNCH, J.

{¶1} Appellant filed a pro se notice of appeal on January 28, 2019, from the

trial court’s entry of December 10, 2018 finding him guilty of speeding and the court’s

December 31, 2018 entry denying his motion for new trial.

{¶2} For the following reasons, this court lacks jurisdiction to consider the

appeal. {¶3} R.C. 2505.02(B) defines the types of orders that constitute a final

appealable order:

{¶4} “(1) An order that affects a substantial right in an action that in effect

determines the action and prevents a judgment;

{¶5} “(2) An order that affects a substantial right made in a special proceeding

or upon a summary application in an action after judgment;

{¶6} “(3) An order that vacates or sets aside a judgment or grants a new trial;

{¶7} “(4) An order that or denies a provisional remedy and to which both of the

following apply:

{¶8} “(a) The order in effect determines the action with respect to the

provisional remedy and prevents a judgment in the action in favor of the appealing party

with respect to the provisional remedy.

{¶9} “(b) The appealing party would not be afforded a meaningful or effective

remedy by an appeal following final judgment as to all proceedings, issues, claims, and

parties in the action.

{¶10} “(5) An order that determines that an action may or may not be maintained

as a class action; * * *.”

{¶11} In criminal cases, pursuant to R.C. 2953.02, a court of appeals only

possesses jurisdiction to hear an appeal if it is from a “judgment or final order.”

Furthermore, the Supreme Court of Ohio has stated that “in a criminal case there must

be a sentence which constitutes a judgment or a final order which amounts ‘to a

disposition of the cause’ before there is a basis for appeal.” State v. Chamberlain, 177

Ohio St. 104, 106-107(1964); see also State v. Thompson, 11th Dist. Portage No. 2018-

2 P-0066, 2018-Ohio-4177; State v. Marbuery-Davis, 11th Dist. Lake No. 2016-L-001,

2016-Ohio-898.

{¶12} In the present case, there has been no disposition of the underlying cause

i.e., appellant has not been sentenced in his criminal case. Moreover, the trial court has

stayed sentencing due to the pending appeal. Also, the denial of the motion for new

trial is interlocutory until the case is concluded. Appellant has a remedy to appeal after

sentencing.

{¶13} Accordingly, the appeal is hereby, sua sponte, dismissed for lack of

jurisdiction.

THOMAS R. WRIGHT, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.